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Employee Fired For Facebook Photos; Loses Court Case

A man in Florida lost his job because he went on vacation. After he sued his employer, he also lost his lawsuit. His Facebook photos were at the center of his lawsuit, and the employer was found to have acted lawfully. Here is what the employee did wrong, and what the employer did right:

Background:

According to the Court, Rodney Jones worked at Accentia Health, a skilled nursing facility that provides long term care. Jones was an activity director, and he supervised five assistant activity directors, decorated the building for holidays and events, maintained calendars, charts and care plans, and oversaw outings, parties, and recreation for Accentia Health patients.

Also according to the Court, Jones had an MRI performed on his right shoulder in August 2014. Jones needed surgery, which was scheduled for September 26, 2014. At Accentia Health, Jones applied for and was granted, a leave of absence under the Family Medical Leave Act (“FMLA”) for his surgery and rehabilitation. His leave began on September 26, 2014, and he was expected to return to work on December 19, 2014.

On December 18, 2014, the day before his scheduled return date, Jones’s doctor reported that Jones could not return to work the next day because he needed additional physical therapy on his shoulder. Accentia Health required Jones to provide a Fitness for Duty Certificate in order to be allowed to return to work, which Jones could not provide. Thus, Jones’ supervisor allowed Jones to take an additional 30 days of non-FMLA medical leave to complete his physical therapy. Jones was now expected to return to work on January 18, 2015.

What Does This Have To Do With Facebook Photos?

While he was on his original FMLA leave of absence, Jones visited Busch Gardens theme park at least twice. He posted pictures of holiday decorations at Busch Gardens on his Facebook page, and also texted some of these pictures to his co-workers for ideas to decorate Accentia Health.

Then, during his 30-day non-FMLA medical leave, Jones spent three days on the island of St. Martin. Jones posted photos on Facebook and provided updates about his vacation. Some of his pictures showed him on the beach, posing by a boat wreck, and wading/swimming in the ocean. Before his 30-day non-FMLA medical leave was over, Accentia Health learned about Jones’s vacations and his updates and pictures.

Jones Attempts to Return to Work:

On January 19, 2015, Jones reported to work with a completed Fitness For Duty Certification. His supervisor showed Jones the Facebook photos of Jones’ trip to St. Martin and Busch Gardens. Jones was suspended from employment pending an investigation. The Court notes that Jones was allowed the opportunity to provide additional facts, but he did not do so. Ultimately, Jones’ employment was terminated on January 23, 2015.

Accentia Health’s Social Media Policy:

During the Court proceeding, Jones’ supervisor testified that he terminated Jones’ employment due to the poor judgment Jones exhibited as a supervisor and the negative impact that his Facebook posts and text messages had among the associates at Accentia Health. He further testified that Jones’ behavior was prohibited by the company’s Social Media Policy, which Jones signed and acknowledged a year prior. Accentia Health’s HR Director also testified that Jones’ behavior violated the Social Media Policy.

The company’s Social Media Policy states: “I understand that Social Media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of Gulf Coast Health Care or violates the HIPAA privacy law may result in disciplinary action up to and including termination.”

Jones argued that his termination had nothing to do with the Social Media Policy, but instead that the company was retaliating against him for having taken an FMLA leave, and that the company interfered with his FMLA benefits.

Lessons For Employers:

First, be sure to have a social media policy. Accentia Health’s policy was short and to the point. The court did not specifically rule on the legality of the policy, however, it was important that the company had one. This is so because the company’s decision-makers concluded that Jones violated the policy. It does not matter if they were correct, or whether Jones actually did not violate the policy. What matters is that they were able to demonstrate that the termination had nothing to do with FMLA retaliation.

Second, the employer acted prudently. It allowed Jones to complete his FMLA and his non-FMLA leaves, and to return to work. Then, it asked him about the Facebook photos, asked him to supply any additional information, and took time to investigate the situation before termination.

Third, the employer was consistent. Regarding the FMLA, the employer acted consistently in making the same requirements, like mandating Fitness For Duty Certifications before reinstatement.

Lessons For Employees:

First, long-time readers of my posts will know this: avoid becoming Facebook friends with co-workers, particularly avoid “friending” your subordinates/superiors. Here, however, Jones also sent the photos in question via text message, so this rule may not have saved Jones.

Second, if you do insist on becoming Facebook friends with co-workers, set your settings so that they can only see certain content when you post. Again, here, this may not have saved Jones because he specifically wanted his co-workers to see the Busch Garden photos.

Third, when you are on a company-approved leave of absence, be sure to avoid activities that would contradict the need for the leave. It seems obvious, but there are countless scenarios where employees violate this practice – Jones (and his attorney) for some reason pushed his case through court, and it was likely an easy decision for the court. So, if you are on a medical leave of absence, you should not run or post pictures of the half marathon you ran while on leave. If you are on bereavement leave, avoid posting pictures of you enjoying the Britney Spears concert in Las Vegas. I think you get the gist here.

DISCLAIMER: Information provided on this website is not legal advice, and it does not create an attorney-client relationship, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Y. Wu is an expert on Social Media and Employment Law. For nearly 20 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University.

About James Wu

James Y. Wu is an expert on Social Media and Employment Law. For nearly 20 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University.

Reader Interactions

Comments

He had damaged his shoulder not his legs so I don’t see how going to see some Gardens contradicts that. He went to look at some gardens- so what ??‍♀️ He sent suggestions for decoration ideas- which to me shows conscientiousness and commitment to coming back to work asap. More to that case than is apparent.

Busch Gardens is not a botanical garden, it is a roller coaster theme park with animals they’ve rescued from around the world. In the old days before the internet and this facebook crap, this would be equivalent to having FMLA and extending it because you need more physical therapy, but your boss comes into the gym while you’re working out and catches you lifting weights when you were allegedly unable to handle a piece of paper. Who knows what he was doing in the pics, but I would suspect it would be things that contradict his story about needing more therapy.

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Neal Schaffer is a leader in helping educate executives and professionals on social media as well as in implementing successful social media strategies for businesses. CEO of the social media agency PDCA Social, social media educator at Rutgers University and the Irish Management Institute, social media keynote speaker who has spoken at hundreds of events on four continents, and author of three social media books, Neal is a true innovator and influencer in the growing world of social media for business.